DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election with traverse of Group I in the reply filed on May 6, 2026 is acknowledged.
The traversal is on the ground(s) that a search and examination of the full set of claims can be made without occasioning a serious search burden on the examiner. Applicant mentions that search of a specific group would include a search in the place where claims of other groups are primarily classified. Applicant also mentions that Perring et al (WO 2008 050084) does not disclose, teach, or suggest the presently claimed method of group I.
This is not found persuasive because groups I-IV are drawn to different subject matter and categories, and maintaining the restriction is necessary to prevent a serious search and examination burden. While the search areas may partially overlap, a complete search for each group remains distinct. To determine whether the groups of inventions relate to a single general inventive concept, the common technical feature was evaluated to see if it qualifies as a special technical feature. As discussed in the Office Action mailed April 2, 2026, the common technical feature of a fragrance composition cannot serve as a special technical feature required to link the groups I-IV because Perring reads on the fragrance composition of instant claims. It is unnecessary to examine whether Perring discloses, teaches, or suggests the specific method of group I.
The requirement is still deemed proper and is therefore made FINAL.
Specification
The specification is objected to because it fails to provide appropriate sections such as a brief description of the drawings. As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
Appropriate correction is required.
Claim Objections
Claim 20 is objected to because the claim numbering is non-consecutive. Claim 19 appears to be missing as the claims proceed from 18 directly to 20. The claims must be numbered consecutively in Arabic numerals (37 CFR 1.75(f)).
Claim 3 recites “claim -1” which should be “claim 1.” Claim 5 recites “claim -3” which should be “claim 3” and “-wherein” which should be “wherein.” While these hyphens may have been intended as strikethrough markings to remove extra spaces, this remains unclear and correction is required for clarity and definiteness.
Appropriate correction is required.
Claim Rejections - 35 USC § 112 New Matter
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5, 18, and 20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1-5 recite “satisfied or met.” The term “satisfied” finds no written description support in the application as originally filed. A review of the original disclosure reveals no explicit, implicit, or inherent support for a threshold or condition being “satisfied” as distinct from being “met.” Because the original specification only supports a condition being “met”, the introduction of the alternative term “satisfied” may impermissibly expand the scope of the disclosure beyond its original filing date. Further, it is unclear whether “satisfied” and “met” are intended to invoke distinct technical thresholds or separate operational conditions as discussed below.
The dependent claims fall therewith.
Appropriate correction/amendment is required.
Claim Rejections - 35 USC § 112 Indefiniteness
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-5, 18, and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1-5, the phrase “satisfied or met” renders the claim scope indefinite because these two synonymous terms are redundant. The specification fails to provide definition of these terms or difference between them. It is unclear whether “satisfied” and “met” are intended to invoke distinct technical thresholds, different legal standard, or distinct claim limitations. As a result, the metes and bounds of the claimed invention cannot be reasonably ascertained and this renders the claim indefinite.
Regarding claim 1 and 3, the claims recite that “Channels 9 and 12 are located on the midline of the human subject.” The phrase “midline of the human subject” lacks anatomical precision in the context of brain imaging. A person having ordinary skill in the art cannot determine the exact physical boundaries of the channels as it is unclear whether the channels are located on the midline of the brain or another anatomical reference line. Figure 1 shows the Channels 9 and 12 are located on the midline of the brain. It is suggested that the term “midline of the human subject” be amended to “midline of brain of the human subject” to correct this issue.
The dependent claims fall therewith.
Clarification and/or amendment is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5, 18, and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (law of nature, natural phenomenon, or an abstract idea) without significantly more.
Claims 1-5, 18, and 20 recite a method of assessing an ability of a test fragrance ingredient or a test fragrance composition to improve an invigoration state of a human subject. Although the claims fall within the statutory category of a process, the claims are directed to a judicial exception. The claimed method merely collects data derived from the human brain’s natural reaction to a fragrance (natural physiological phenomenon) and processes that data using a statistical filtering logic such as Criterion A. For example, step (d) of claim 1 relies entirely on a mathematical or logical evaluation where Criterion A is satisfied by evaluating ten specific statistical conditions. Analyzing and classifying data tracks derived from a natural phenomenon using a set of mathematical conditions is an abstract intellectual processing of information. Analyzing, comparing, and matching neuroimaging data trends against statistical thresholds represents a mathematical concept and mental processes that can be performed via basic computational logic or human thought. Accordingly, the claimed method is directed to a combination of mental processes and mathematical relationships, which fall under the judicial exception of an abstract idea. Collecting neuroimaging date and mathematically assessing it to deduce a human’s emotional/cognitive profile (invigoration state) represents the fundamental processing of information, which is a recognized abstract idea.
This judicial exception is not integrated into a practical application. The additional claim elements such as measuring baseline and resulting states using an optical neuroimaging via functional Near Infrared Spectroscopy (fNIRS) merely act as a mechanism for gathering data to feed into the abstract mathematical/logical comparison. The physical steps of having a subject smell a fragrance and collecting fNIRS data from standard brain regions are simple data gathering activities. They simply collect biological data to feed into the mathematical evaluation. They do not apply the results to a practical application such as a specific, transformative therapeutic treatment or technical process.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The use of fNIRS to measure blood oxygenated haemoglobin (Oxy Hb) and deoxygenated haemoglobin (Deoxy Hb) levels is a well-known, routine, and conventional brain imaging technique. Specifying particular measurement locations (channels) merely points out standard data collection parameters expected when mapping the brain using fNIRS caps. Presenting a fragrance to a subject to observe biological response is a conventional testing workflow in the field of sensory analysis. For example, Kojima (小島) et al. (JP 6289158, 2018; cited on PTO-892) discloses a method for determining a feeling of arousal by measuring a change in cerebral blood flow (Oxy Hb and Deoxy Hb) using fNIRS when a subject smells a certain scent. The claims do not include an inventive concept such as a non-conventional improvement over existing assay techniques. Because the additional elements are insufficient to amount to significantly more than the judicial exception, they fail to transform the abstract idea into a patent-eligible subject matter.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kojima (小島) et al. (JP 6289158, 2018; cited on PTO-892; all citations from the machine translation) in view of Perring et al. (WO 2008 050084).
Kojima discloses a method for determining a feeling of arousal by measuring a change in cerebral blood flow when smelling a certain scent such as fragrance (page 1, ¶ 4; page 3, ¶ 5). Kojima discloses that the change in cerebral blood flow of human can be measured by a change in the amount of oxyhemoglobin (Oxy Hb) in the blood near the surface of the cerebrum using fNIRS (page 2, ¶ 2; page 3, ¶ 1). Kojima discloses that the cerebral blood flow at the light-irradiated site and the temporal changes in Oxy Hb and deoxyhemoglobin (Deoxy Hb) contained therein can be recorded as brain activity time-series data (optical neuroimaging) using fNIRS (page 3, ¶ 2). Kojima discloses that cerebral blood flow can be measures in one or more territories (channels) selected from the group consisting of the frontal eye field, the occipital region of the prefrontal cortex, the frontal pole, the orbital frontal cortex, the inferior frontal gyrus, and the lower frontal cortex, which include right and left brain hemispheres and midline of the brain area (page 1, ¶ 2; Fig. 1; page 3, ¶3). Kojima discloses that the assessment method can comprise measuring the cerebral blood flow (Oxy Hb, Deoxy Hb, and total Hb) of the subject during the rest period (base state), task period, and post-task period (resulting state) over time for each channel by fNIRS; calculating average value of cerebral blood flow during the rest period of 10 seconds, analysis period of 0-5 seconds, 5-10 seconds, 10-15 seconds, and 5-15 seconds after the presentation of the scent; and determining the average value of changes in cerebral blood flow in each channel (page 4, last ¶-page 5, ¶ 1).
Kojima does not disclose the assessment of an ability of fragrance ingredient or composition to improve an invigoration state. Kojima does not disclose an additional step of developing guidelines for creating one or more fragrance compositions that have an improved invigoration effect.
Perring discloses a fragrance composition or ingredient that improves an invigoration state (abstract, page 8, ¶ 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply the method of Kojima to test the fragrance composition or ingredient of Perring in order to assess the effect of improving the invigoration state by capturing unconscious, implicit emotional, and cognitive responses to the fragrance. A person of ordinary skill in the art would have been motivated to make these modifications and reasonably would have expected success because Perring teaches a fragrance composition or ingredient having an effect of improving the invigoration state. Further, a person of ordinary skill in the art would have been motivated to utilize the fNIRS method of Kojima for testing a fragrance having improved invigoration effect in order to expand the applications of the method. A person of ordinary skill in the art would have been motivated to utilize the fNIRS method of Kojima for developing guidelines for creating fragrance compositions that have an improved invigoration effect on human subjects without relying on the subjects’ conscious interpretation or biases. The specific conditions and criteria for the assessment method using fNIRS such as conditions A1-10, B1-B6, and C1-C10; and Criteria A-D of instant claims 1-5 are clearly result effective parameters that a person of ordinary skill in the art would routinely optimize. In the field of functional neuroimaging (fNIRS), it is universally recognized that channel selection (spatial resolution), time windows (temporal resolution), and statistical thresholds (significance levels) are the primary variables. Optimization of parameters such as threshold levels and time intervals is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine such parameters in order to best achieve the desired assessment method for testing a fragrance. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5, 18, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 16, and 17 of copending Application No. 18/555,705 (US 2024 0197243; cited on PTO-892) in view of Perring et al. (WO 2008 050084).
Regarding claim 1, claim 1 of the ‘705 recites a method of assessing an ability of a test fragrance ingredient or a test fragrance composition to improve a relaxation state of a human subject using fNIRS. Regarding claim 18, claim 16 of the ‘705 recites the method further comprising developing guidelines for creating one or more fragrance compositions that have a relaxing effect on human subjects. Regarding claim 20, claim 17 of the ‘705 recites Oxy Hb and Deoxy Hb concentrations measured by the fNIRS. Regarding claims 1-5, claims 1-4 of the ‘705 recites conditions and threshold criteria.
Claims of the ‘705 does not recite an ability of a test fragrance ingredient or composition to improve an invigoration state.
As discussed above, Perring discloses a fragrance composition or ingredient that improves an invigoration state (abstract, page 8, ¶ 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply the method of the ‘705 to test the fragrance composition or ingredient of Perring in order to assess the effect of improving the invigoration state, instead of relaxation state. A person of ordinary skill in the art would have been motivated to make these modifications and reasonably would have expected success because Perring teaches a fragrance composition or ingredient having an effect of improving the invigoration state. Further, a person of ordinary skill in the art would have been motivated to utilize the method of the ‘705 for testing a fragrance that have an improved invigoration effect in order to expand the applications of the method. The specific conditions and criteria for assessment method using fNIRS such as conditions A1-10, B1-B6, and C1-C10; and Criteria A-D of instant claims are clearly result effective parameters that a person of ordinary skill in the art would routinely optimize. In the field of functional neuroimaging (fNIRS), it is universally recognized that channel selection (spatial resolution), time windows (temporal resolution), and statistical thresholds (significance levels) are the primary variables. Optimization of parameters such as threshold levels and time intervals is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine such parameters in order to best achieve the desired assessment method for testing a fragrance. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5, 18, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 17, and 18 of copending Application No. 18/555,712 (US 2024 0197221; cited on PTO-892) in view of Perring et al. (WO 2008 050084).
Regarding claim 1, claim 1 of the ‘712 recites a method of assessing an ability of a test fragrance ingredient or a test fragrance composition to improve a happiness state of a human subject using fNIRS. Regarding claim 18, claim 17 of the ‘712 recites the method further comprising developing guidelines for creating one or more fragrance compositions that have an improved happiness effect on human subjects. Regarding claim 20, claim 18 of the ‘712 recites Oxy Hb and Deoxy Hb concentrations measured by the fNIRS. Regarding claims 1-5, claims 1-5 of the ‘712 recites conditions and threshold criteria.
Claims of the ‘712 does not recite an ability of a test fragrance ingredient or composition to improve an invigoration state.
As discussed above, Perring discloses a fragrance composition or ingredient that improves an invigoration state (abstract, page 8, ¶ 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply the method of the ‘712 to test the fragrance composition or ingredient of Perring in order to assess the effect of improving the invigoration state, instead of happiness state. A person of ordinary skill in the art would have been motivated to make these modifications and reasonably would have expected success because Perring teaches a fragrance composition or ingredient having an effect of improving the invigoration state. Further, a person of ordinary skill in the art would have been motivated to utilize the method of the ‘712 for testing a fragrance that have an improved invigoration effect in order to expand the applications of the method. The specific conditions and criteria for assessment method using fNIRS such as conditions A1-10, B1-B6, and C1-C10; and Criteria A-D of instant claims are clearly result effective parameters that a person of ordinary skill in the art would routinely optimize. In the field of functional neuroimaging (fNIRS), it is universally recognized that channel selection (spatial resolution), time windows (temporal resolution), and statistical thresholds (significance levels) are the primary variables. Optimization of parameters such as threshold levels and time intervals is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine such parameters in order to best achieve the desired assessment method for testing a fragrance. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5, 18, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 15, and 16 of copending Application No. 18/555,838 (US 2024 0197222; cited on PTO-892) in view of Perring et al. (WO 2008 050084).
Regarding claim 1, claim 1 of the ‘838 recites a method of assessing an ability of a test oral care flavour ingredient or a test oral care flavour composition to improve a relaxation state of a human subject using fNIRS. Regarding claim 18, claim 15 of the ‘838 recites the method further comprising developing guidelines for creating one or more oral care flavour compositions that have a relaxing effect on human subjects. Regarding claim 20, claim 16 of the ‘838 recites Oxy Hb and Deoxy Hb concentrations measured by the fNIRS. Regarding claims 1-5, claims 1, 3, and 4 of the ‘838 recites conditions and criteria.
Claims of the ‘838 does not recite a test fragrance ingredient or a test fragrance composition that improves an invigoration state.
As discussed above, Perring discloses a fragrance composition or ingredient that improves an invigoration state (abstract, page 8, ¶ 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply the method of the ‘838 to test the fragrance composition or ingredient of Perring in order to assess the effect of improving the invigoration state, instead of relaxation state. A person of ordinary skill in the art would have been motivated to make these modifications and reasonably would have expected success because Perring teaches a fragrance composition or ingredient having an effect of improving the invigoration state. Further, a person of ordinary skill in the art would have been motivated to utilize the method of the ‘838 for testing a fragrance that have an improved invigoration effect in order to expand the applications of the method. The specific conditions and criteria for assessment method using fNIRS such as conditions A1-10, B1-B6, and C1-C10; and Criteria A-D of instant claims are clearly result effective parameters that a person of ordinary skill in the art would routinely optimize. In the field of functional neuroimaging (fNIRS), it is universally recognized that channel selection (spatial resolution), time windows (temporal resolution), and statistical thresholds (significance levels) are the primary variables. Optimization of parameters such as threshold levels and time intervals is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine such parameters in order to best achieve the desired assessment method for testing a fragrance. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5, 18, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 15, and 16 of copending Application No. 18/555,983 (US 2024 0197223; cited on PTO-892) in view of Perring et al. (WO 2008 050084).
Regarding claim 1, claim 1 of the ‘983 recites a method of assessing an ability of a test oral care flavour ingredient or a test oral care flavour composition to improve a relaxation state of a human subject using fNIRS. Regarding claim 18, claim 15 of the ‘983 recites the method further comprising developing guidelines for creating one or more oral care flavour compositions that have a relaxing effect on human subjects. Regarding claim 20, claim 16 of the ‘983 recites Oxy Hb and Deoxy Hb concentrations measured by the fNIRS. Regarding claims 1-5, claims 1, 3, and 4 of the ‘983 recites conditions and criteria.
Claims of the ‘983 does not recite a test fragrance ingredient or a test fragrance composition that improves an invigoration state.
As discussed above, Perring discloses a fragrance composition or ingredient that improves an invigoration state (abstract, page 8, ¶ 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply the method of the ‘983 to test the fragrance composition or ingredient of Perring in order to assess the effect of improving the invigoration state, instead of relaxation state. A person of ordinary skill in the art would have been motivated to make these modifications and reasonably would have expected success because Perring teaches a fragrance composition or ingredient having an effect of improving the invigoration state. Further, a person of ordinary skill in the art would have been motivated to utilize the method of the ‘983 for testing a fragrance that have an improved invigoration effect in order to expand the applications of the method. The specific conditions and criteria for assessment method using fNIRS such as conditions A1-10, B1-B6, and C1-C10; and Criteria A-D of instant claims are clearly result effective parameters that a person of ordinary skill in the art would routinely optimize. In the field of functional neuroimaging (fNIRS), it is universally recognized that channel selection (spatial resolution), time windows (temporal resolution), and statistical thresholds (significance levels) are the primary variables. Optimization of parameters such as threshold levels and time intervals is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine such parameters in order to best achieve the desired assessment method for testing a fragrance. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-5, 18, and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 15, and 16 of copending Application No. 18/556,014 (US 2024 0197183; cited on PTO-892) in view of Perring et al. (WO 2008 050084).
Regarding claim 1, claim 1 of the ‘014 recites a method of assessing an ability of a test oral care flavour ingredient or a test oral care flavour composition to improve an invigoration state of a human subject using fNIRS. Regarding claim 18, claim 15 of the ‘014 recites the method further comprising developing guidelines for creating one or more oral care flavour compositions that have an invigorating effect on human subjects. Regarding claim 20, claim 16 of the ‘014 recites Oxy Hb and Deoxy Hb concentrations measured by the fNIRS. Regarding claims 1-5, claims 1, 3, and 4 of the ‘014 recites conditions and criteria.
Claims of the ‘014 does not recite a test fragrance ingredient or a test fragrance composition.
As discussed above, Perring discloses a fragrance composition or ingredient that improves an invigoration state (abstract, page 8, ¶ 1).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to apply the method of the ‘983 to test the fragrance composition or ingredient of Perring in order to assess the effect of improving the invigoration state, instead of testing the oral care flavour ingredient or composition. A person of ordinary skill in the art would have been motivated to make these modifications and reasonably would have expected success because Perring teaches a fragrance composition or ingredient having an effect of improving the invigoration state. Further, a person of ordinary skill in the art would have been motivated to utilize the method of the ‘014 for testing a fragrance that have an improved invigoration effect in order to expand the applications of the method. The specific conditions and criteria for assessment method using fNIRS such as conditions A1-10, B1-B6, and C1-C10; and Criteria A-D of instant claims are clearly result effective parameters that a person of ordinary skill in the art would routinely optimize. In the field of functional neuroimaging (fNIRS), it is universally recognized that channel selection (spatial resolution), time windows (temporal resolution), and statistical thresholds (significance levels) are the primary variables. Optimization of parameters such as threshold levels and time intervals is a routine practice that would be obvious for a person of ordinary skill in the art to employ and reasonably would expect success. It would have been customary for an artisan of ordinary skill to determine such parameters in order to best achieve the desired assessment method for testing a fragrance. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See MPEP § 2144.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONG HWAN BAEK whose telephone number is (571)272-0670. The examiner can normally be reached Mon - Thu, 9 am - 3 pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael G Hartley can be reached at 571-272-0616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JONG HWAN BAEK/Examiner, Art Unit 1618
/Michael G. Hartley/Supervisory Patent Examiner, Art Unit 1618
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